Personal injury litigation – finding a better way

September 29, 2020

By Bill Braithwaite QC

I can’t say I’m surprised that the Personal Injury Arbitration Service (PIcARBS) looks to have run its course.

While the lack of interest over the last five years has been put down to lawyers not wanting to trial the service, market forces are decisive and in relation to large serious and catastrophic claims, the market is right.

That said, I’m full of admiration for anyone who wants to make an effort to improve our personal injury litigation service. I spend my time apologising to litigants for the stresses caused in major brain injury claims, and I always have to tell them that we haven’t found a better way.

Things are changing, though, and that’s where market forces come into the equation. The most obvious example is the development of the settlement meeting and, to a lesser extent, mediation. It is now comparatively rare for big PI claims to go to trial, even though the volume of such claims is still high. The reason, in my opinion, is that knowledgeable lawyers on both sides of big claims realise that they know more than most of the judges who are likely to try the cases. That being so, it makes no sense to relinquish control to an outsider who has less expertise.

Of course, the answer is alternative dispute resolution, not only in its well-known forms, but also in other, imaginative, ways. My favourite is what I call neutral facilitation; the appointment of a senior lawyer at the outset, with general discretion to smooth out and speed up the entire recovery, rehabilitation, and litigation process. If that doesn’t suit the parties, they can agree any form of alternative. The essence is that both sides of the claim should be able to discuss and agree a sensible, quick, cheap and fair method of resolving issues.

If necessary, the parties could agree that the facilitator/evaluator/determiner could appoint, with their input, an expert in the relevant discipline to help him or her resolve the problem.

I’ve used ADR many times. I’ve had defence solicitor and insurer join me and my clients in our consultation, and we have agreed, for example, that we will choose our experts so that we don’t antagonise the other side. All forms of liability issues, both primary and contributory, are easy to resolve by good analysis, reduction of issues, mature discussion, possibly with a senior, outside lawyer to facilitate. Of course, if the parties choose, they can agree to appoint an outsider to evaluate (not just early, but at any time) or determine (binding or non-binding, with or without a right of appeal). In other words, we can do anything we want to improve and cheapen the system, provided that both sides are sensible and imaginative, or at least open to an inventive solution.

I’m afraid that’s why arbitration of large catastrophic injury cases won’t work; it has none of those qualities.

In practical terms, personal injury lawyers need to have ADR at the front of their minds when pursuing claims. Most areas of serious injury have the potential to be contentious; two very expensive aspects of the recovery process are:

  1. when the patient is ready to come out of hospital, he or she will probably need rehabilitation; choice of in-patient or home, choice of unit (from less than £3,000 a week to £15,000), length of stay, setting of goals, and measurement of progress
  2. when rehabilitation finishes, finding suitable accommodation can be one of the most contentious areas; too big, too expensive, or too small and wrong location, depending which side looks at it – easy to find a solution for joint search and suitability check, and evaluation if necessary.

No problem or issue is beyond resolution if parties can be sensible enough to agree on a method of analysing, examining, condensing and summarising the differences between them, and then agreeing on the method of balancing competing points of view. The word sensible crops up a lot in my work; that is the essential ingredient, and it is sadly sometimes lacking.